Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Monday, 15 June 2009

 2                           [Rule 65 ter]

 3                           [Closed session]

 4                           -- Upon commencing at 2.18 p.m.

 5             JUDGE BONOMY:  Good afternoon, everyone.

 6             It looks as though we've booked a room that's too small for the

 7     purpose today.  We have a small army on the right here, representing the

 8     Prosecution.

 9             Mr. Karadzic, you've arrived on your own this time.  As before,

10     we did extend an invitation to you to bring one of your legal assistants

11     with you, if you wished.  And if we do have another of these meetings at

12     any stage, then you may find it would be helpful to everyone concerned if

13     one of the legal assistants could come.

14             I appreciate that you're anxious for meetings to take place in

15     public, but there are certain benefits to be derived from a more informal

16     discussion of certain aspects of the case.

17             It's not only that we need a bigger room, perhaps, for the

18     personnel involved, for obvious reasons, but these reasons stem from the

19     volume of material that is now available for you and for the Chamber in

20     dealing with the case, and no one person can master that very readily.

21     It does take time.  And, therefore, I obviously need assistance.  I

22     suspect that you would benefit from assistance at such meeting as well.

23             Now, can you confirm to me that you are hearing the

24     interpretation in B/C/S?

25             THE ACCUSED: [Interpretation] Yes, yes, I can.

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 1             JUDGE BONOMY:  The purpose of this meeting is to narrow down the

 2     real issues that may emerge from these various motions that have come in

 3     recently, particularly those related to Rules 92 bis and quater and

 4     94 bis, and to see if we can cut through some of the paperwork that would

 5     otherwise be necessary to pass back and forward between the parties to

 6     resolve all the little bits and pieces, the minor issues that clearly

 7     arise here.  I will identify as many as I can and hope that you will

 8     assist me by identifying others that can suitably be resolved in this

 9     administrative environment.

10             I want to deal, first of all, with the 92 bis and quater motions.

11     I might as well take them in the order in which they are numbered by the

12     Prosecution.  So let's look, first of all, at the first motion for the

13     admission of witnesses under Rule 92 bis, and that's witnesses for

14     11 municipalities.

15             I wonder if, Mr. Tieger or Ms. Uertz-Retzlaff, you could, first

16     of all, clarify for me how you define the 11 municipalities and the ARK

17     municipalities which are the subject of the second motion.

18             MS. UERTZ-RETZLAFF:  Yes, Your Honour, I will address the issues

19     of 92 bis and 92 quater.

20             The 11 municipalities are actually those in Eastern Bosnia and

21     down the Drina Valley area, while ARK is North-Western Bosnia.  That's

22     how we divided it, because there are different strategic goals related to

23     those.

24             JUDGE BONOMY:  How many fall under the description "The ARK

25     municipality"?

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 1             MS. UERTZ-RETZLAFF:  The ARK municipality, actually, let me see.

 2     Nine municipalities.

 3             JUDGE BONOMY:  And so 11 plus 9, and the remainder are Sarajevo

 4     municipalities, are they?

 5             MS. UERTZ-RETZLAFF:  Yes.

 6             JUDGE BONOMY:  Now, there are two different categories of filings

 7     which are causing concern to us, as well as to Mr. Karadzic, in relation

 8     to these motions, and these are: confidential filings and ex parte

 9     filings.  Now, it's important, I think at the outset, that we distinguish

10     the two and identify where, in general, the problems may lie for the

11     administration of this whole subject.

12             Mr. Karadzic, much of the material is described as confidential.

13     But where it's simply described as confidential, you have access to it,

14     it is disclosed to you.  Now, that may be -- may not really be a problem.

15     You've, however, asked for the confidential status to be lifted from the

16     material in general, and you seek to have it rendered public at a stage

17     when, of course, it's not really in the public domain, unless it's

18     evidence which has been given in an earlier case.

19             Now, can you tell me if there's a particular reason why you

20     consider that material should be public prior to the trial?

21             THE ACCUSED: [Interpretation] With all due respect,

22     Your Lordship, I will stick by the decision I made earlier, which is that

23     I will present all my views in a public hearing.  The public at large is,

24     as I said, one of the rare allies that I have.

25             As far as the confidentiality issue is concerned, I can only

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 1     state that confidentiality, as such, plays into the hands of what I term

 2     false positions of the Defence and everything that supports the -- of the

 3     Prosecution and everything that supports the Prosecution.  There is no

 4     reason why the material should not be public.  It has not happened so far

 5     in the history of this Tribunal in Bosnia that any witness was being

 6     interfered with.  For the rest of the hearing, I will be listening to

 7     what you have to discuss with the Prosecution in silence.

 8             As for my position, it remains the same as before.

 9             JUDGE BONOMY:  I'd like you to try to understand mine, though,

10     and I think it will be the position of the Trial Chamber.

11             I suspect I am right when I say that no case has been conducted

12     more in the public eye than the Milutinovic trial, which finished in

13     February, and virtually all of the evidence was presented in public, and

14     you'll see in the Tribunal no stronger defender of the objective of a

15     public trial than me.  But it's a different thing to ask for the

16     statements of the witnesses, who may give evidence, to be presented

17     publicly before the trial, and indeed it may be a recipe for confusion,

18     because a witness who has given a statement may not, in fact, say the

19     same thing in the trial.  And what's important is that the public hear

20     the actual evidence under solemn declaration in court, rather than, as

21     happens in many areas of our life today, political, sporting, and

22     cultural, rather than hearing speculation about what might or might not

23     actually take place in the trial.  So I see a difference between making

24     public everything that actually is led as evidence in the trial and

25     making public the preparatory material as it is exchanged between the

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 1     parties.

 2             Now, if you can identify some prejudice that you may suffer

 3     because the preparatory material is not public, then I would want to take

 4     account of that in making a decision.  But unless there is a particular

 5     reason, then it may be that in fairness to everyone, including yourself,

 6     the witnesses, and the Prosecution, that material, in general, that has

 7     not already been brought into the public domain by presentation in court

 8     should remain confidential.

 9             Now, do you have any comment on that?

10             THE ACCUSED: [Interpretation] I can only express my gratitude for

11     the words that have been uttered and that have proved useful to me, and

12     that I will rely on, in terms of the reliability and importance of the

13     words uttered under an oath, unlike those stated in a political

14     statement.  However, as for the rest, allow me to stand by my previous

15     position.

16             JUDGE BONOMY:  Ms. Retzlaff, there are hints in what has been

17     said in the various exchanges that have taken place, in relation to these

18     various motions, that the Prosecution often maintained confidentiality

19     because there are protective measures, because there are specific reasons

20     for confidentiality, and then separately there is a broader statement

21     that you make that prior to the trial, in fact, resulting in the

22     presentation of material in court, there are good reasons for it

23     remaining -- the material remaining confidential.  Now, if there had been

24     no other cases in this Tribunal, it would be easy then to say, just keep

25     everything confidential.  But we have here the problem that you label

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 1     material as confidential because it's in an annex related to a motion,

 2     but some of it has actually been -- or is the result of the public

 3     presentation of the evidence in court and is part of the public

 4     transcript of previous trials.  I take it that you see that as, in fact,

 5     public material, albeit you're labelling it confidential in many

 6     instances in the context of this case.

 7             MR. TIEGER:  I'll take that one, Your Honour.

 8             I think as framed, the answer -- as specifically framed, of

 9     course, I think the answer would be, yes, if a document, or testimony, as

10     you alluded to, that was presented publicly, and that is the -- that

11     represents the only issue in connection with the question of

12     confidentiality versus public, I think the question answers itself.  We

13     would agree that's a public document.  But in many cases, that particular

14     public presentation of the document or transcript is then linked to some

15     other aspect of protective measures and may run -- and again I know I'm

16     speaking in the abstract, but may run the risk, in certain circumstances,

17     of breaching a previously-imposed confidential measure.

18             So in the abstract, the proposition you just articulated is

19     accurate, and the Prosecution shares that.  Where there sometimes may

20     appear to be confusion about that position is where that document or

21     testimony may somehow implicate other confidential measures.

22             MS. UERTZ-RETZLAFF:  Perhaps I could just say, in general terms,

23     why we made this confidential annexes to each and every of these 92 bis

24     motions.

25             What can be seen from the confidential annex is actually the

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 1     summary of a witness statement, and we have actually compiled just one

 2     document, including witnesses who have protective measures and those who

 3     don't.  And to protect the identity of the protected witnesses, that's

 4     why we filed it confidential, because just as an example, if a certain

 5     witness who is a functionary or was a functionary in a certain

 6     municipality and provided evidence in the past with protective measures

 7     in relation to protection of identity, that's why we filed the whole

 8     document confidential.  Because if the public would see that, it could

 9     easily say, Oh, that's the person X and so on that I knew from that

10     function.  That's the reason for the confidentiality of these particular

11     document.

12             What we could have done, of course, we could have prepared a

13     public annex with those with no protective measures or a -- and a

14     confidential annex for those with protective measures, but we found it

15     more useful to have just one annex.

16             And in relation to the ex parte, I think that's obvious that's

17     the ones where Dr. Karadzic would not have access to for the time being.

18             JUDGE BONOMY:  We'll come to them in a moment.  But if that was

19     your reason for filing these confidentially, then I think the

20     Trial Chamber will order you to do the exercise you didn't want to do,

21     which is to split them into two.  I thought there was a broader reason

22     and that's what Mr. Tieger was dealing with.

23             MR. TIEGER:  And that is the reason enunciated in a

24     recent filing, Your Honour.

25             JUDGE BONOMY:  Indeed, we've now you talking at cross-purposes

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 1     here, which is difficult for me, because it's -- there's a recipe in

 2     there for things going wrong.  We need to be clear about what we're

 3     doing, and it may be that even though there are the two reasons, it may

 4     be that you ought to do this exercise and identify clearly what is the

 5     subject of protective measures and identify clearly what is only being

 6     regarded by you as confidential, not to be treated as confidential

 7     because it's in the pre-trial phase.

 8             MR. TIEGER:  Well, if you permit me to reconcile those two

 9     positions, I would say that the position most recently enunciated by the

10     Prosecution and that the Court summarised earlier, is the paramount and

11     principal basis for that.  We recognise, however, that there may be

12     different views, and if that was the case, it is at least conceivable

13     that those could be parsed out in that way.  However, we consider that

14     that has -- that's a secondary and, frankly, less satisfactory method of

15     proceeding because of, A, the risk of unnecessary errors that may arise

16     and unnecessarily breach confidentiality; and, 2, because it under-cuts,

17     in the end, the broader principle of trying to bring -- of trying to

18     maximize the prospect of as much public testimony as possible by

19     insulating the pre-trial proceedings from unnecessary problems,

20     interference, pressures, and so on.

21             JUDGE BONOMY:  Right.

22             Now, there's a related problem, and that is the up-loading of

23     exhibits into e-court.  I suspect, although I don't know, that all the

24     exhibits that you refer to here will have been disclosed in some form

25     already to Mr. Karadzic, but then in the context of presenting these

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 1     motions, you bring relevant exhibits together in a group, but haven't got

 2     them on e-court as yet.  Now, what's happening on that front, and does

 3     it, in fact, make it more difficult for him until they have been

 4     up-loaded?

 5             MR. TIEGER:  Sorry, Your Honour, just one moment.

 6                           [Prosecution counsel confer]

 7             MR. TIEGER:  Well, two responses, Your Honour.

 8             First of all, I think we'll find that the bulk, if not all, of

 9     the exhibits will have been up-loaded in e-court by the end of the day,

10     or -- and I'm still speaking in the context of the motions, of course.

11             But, secondly, I believe that the material was previously

12     disclosed in a manageable form, and the uploading into e-court should not

13     be a matter of that much significance to the -- most of the responses and

14     to the motions, themselves.

15             JUDGE BONOMY:  Now, we'll come to the Sarajevo motions later, but

16     have you had an opportunity yet to digest the decision on adjudicated

17     facts made by the Trial Chamber in relation to Sarajevo and to decide

18     whether, in fact, that has an impact on your motion for the admission of

19     92 bis evidence in relation to Sarajevo?  And I ask it now because it

20     affects, in general, the situation as we come to deal with the other

21     motions in relation to adjudicated facts.

22             MS. UERTZ-RETZLAFF:  We have actually tasked people to identify

23     the witnesses that have -- are impacted by the adjudicated facts that

24     were granted and see who can be dropped.  That's actually in the making.

25             JUDGE BONOMY:  So you've answered my next question, I think,

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 1     which would have been the extent -- in fact, you could be perhaps a bit

 2     more specific.  To what extent will you withdraw witnesses from these

 3     motions if decisions are made -- favourable decisions, from your point of

 4     view, are made on adjudicated facts to which these witnesses would have

 5     spoken?

 6             MR. TIEGER:  Your Honour, we -- I mean, it was raised earlier in

 7     the motions; it was raised in an earlier status conference.  We're

 8     looking at both factors that were alluded to in the filings and the

 9     status conference:  A, the relationship between adjudicated facts and the

10     evidence presented by the individual witness; and, B, the overall impact

11     of adjudicated facts and opportunities for -- the significance of the

12     rebuttable presumption, the opportunity for rebuttal evidence, and the

13     totality of factors involved in the determination of what impact the

14     adjudicated facts can have in connection with individual witnesses and

15     the totality of evidence about that particular component of the case.

16             JUDGE BONOMY:  But it might make sense, if we are going to try

17     and programme how these motions are to be addressed, if we were to start

18     with the Sarajevo ones.  These large -- in fact, all of this may not be

19     decided until either the trial begins or is about to begin, but that

20     doesn't mean to say they ought not to be addressed meanwhile and the

21     situation considered by the Chamber with a view to announcing appropriate

22     decisions at the right time, depending on what the scale of the trial is

23     determined to be.  Now, that's not prejudging the question whether the

24     trial will be on everything or only part of the indictment, but it does

25     leave open to the appropriate Chamber, whether it be this one or the

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 1     actual Trial Chamber, to decide that certain parts of the indictment

 2     would not be heard at this stage, in which case it would not be

 3     appropriate to grant authority for 92 bis witnesses who affected that

 4     part.

 5             So the sensible thing, I think, will be to programme it so that

 6     we deal with the 92 bis witnesses in respect of whom decisions have been

 7     made under -- on adjudicated facts, first of all, and then for us to

 8     decide -- well, it would be the third motion which will be addressed

 9     next, because of the order in which Mr. Karadzic has to respond, and we

10     would look at that and the related 92 bis motions.  That would reserve,

11     obviously, the second motion for much later and the related 92 bis

12     matters.  And meanwhile, I think coincidentally or concurrently with

13     this, we can look at the 94 bis issue, and the eight, I think it's eight,

14     experts and the 92 quater applications, which are much more manageable

15     than the 92 bis applications are.

16             So that's just a rough outline.  Now, do you have any comments to

17     make on that overall approach to this?

18             MR. TIEGER:  No.  I mean, I think I understand the logic behind

19     it, Your Honour, and even if it was a more arbitrary selection of the

20     priorities that we proceed by, I don't think we'd have a dispute.  But I

21     certainly understand what -- I mean, it seems to be clear to me, what

22     information the Court is seeking and why.

23             JUDGE BONOMY:  This has to be work in progress, I think, and it

24     has to be viewed as an ongoing exercise which will actually still be

25     ongoing even after the trial has started.  It would not be possible to

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 1     view it otherwise, I think.

 2             Now, Mr. Karadzic, do you have any comment to make on anything

 3     that's been discussed so far, and in particular on the idea that we will

 4     stagger the dates for responses for these various motions so that it

 5     makes the whole exercise more manageable both for you and for the

 6     Trial Chamber?

 7             THE ACCUSED: [Interpretation] As you know, I am going to refer to

 8     this in public session as well.  All I wish to say is that I am

 9     cautiously viewing matters which are not going to make anything easier

10     for me.  It might make my position even more difficult, actually, because

11     embarking on the proceedings before I am completely acquainted with the

12     case of the Prosecution, for me, is dangerous and unacceptable.  I really

13     need to see everything, review everything, because it's not possible to

14     do that during the actual trial.  The Defence will not be able to manage

15     to do that then.

16             JUDGE BONOMY:  Thank you.

17             And I think I'm right in saying there's no ex parte material

18     related to the first one.

19             MS. UERTZ-RETZLAFF:  No, Your Honour.

20             JUDGE BONOMY:  And am I right in saying that that is broadly the

21     position -- the second one is broadly the same as the first one; we've

22     got confidential appendices or an appendix, appendix A, B, but nothing

23     ex parte?

24             MS. UERTZ-RETZLAFF:  Yes, Your Honour.  It's also the same for

25     the Sarajevo municipalities; it's the same for Sarajevo siege, and also

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 1     for - let me just double-check - for Srebrenica.  The late disclosure, of

 2     course, that's the one with the ex parte.  Four experts.  It is also --

 3             JUDGE BONOMY:  Ms. Retzlaff, you're ahead of me now.  Just, let's

 4     deal with this in stages.

 5             MS. UERTZ-RETZLAFF:  Yes.

 6             JUDGE BONOMY:  Now, which one are you drawing my attention to as

 7     having the ex parte appendix?

 8             MS. UERTZ-RETZLAFF:  That's the late disclosure filing.  That's

 9     the seventh motion, the seventh motion.

10             JUDGE BONOMY:  We'll come to that.

11             So the first five, by the end of today, all the exhibits will be

12     up-loaded into e-court, and all the material will be in the hands of

13     Mr. Karadzic in un-redacted -- completely un-redacted form; is that

14     correct?

15             MS. UERTZ-RETZLAFF:  Yes, Your Honour.

16             JUDGE BONOMY:  And in relation to number 6, is there any issue in

17     relation to protective measures for witnesses that has not yet been dealt

18     with?

19             MS. UERTZ-RETZLAFF:  No, Your Honour.  Number 6, that's the

20     hostages.  There's also the usual appendix, confidential appendix,

21     because of -- one of the witnesses had testified partly in private

22     session, so that's why this one is confidential.

23             Your Honour, if I remember correctly, in relation to the

24     12 witnesses, some of the 12 witnesses are international witnesses for

25     countries where protective measures were requested according to Rule 70,

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 1     and this motion is in front of you.  I just can't exactly now think which

 2     of the 12, but it's definitely several.

 3             JUDGE BONOMY:  Well, I had a note that there are three witnesses

 4     for whom protective measures might be sought, but I don't think we have

 5     such an application at the moment.

 6                           [Presiding Judge and legal officer confer]

 7             JUDGE BONOMY:  There appear to be three witnesses who would be

 8     among the 12, I assume, in the sixth motion for whom you have measures

 9     approved that were applied by Rule 70, under Rule 70.

10             MS. UERTZ-RETZLAFF:  I think we just filed it on Friday, our

11     motion.

12             JUDGE BONOMY:  It seems to us that we're talking about two

13     separate things, and if I give you the numbers of these witnesses, you'll

14     be able to identify them.  They are KDZ-112, 196, and 259.  112, 196, and

15     259.

16                           [Prosecution counsel confer]

17             MS. UERTZ-RETZLAFF:  Your Honour, I just was -- my colleague here

18     just told me that for these three, we actually do have protective

19     measures.  And the other motion that I referred to was actually five from

20     this other country, so --

21             JUDGE BONOMY:  In this case, have the statements of these

22     witnesses now been disclosed?

23             MS. UERTZ-RETZLAFF:  Yes, Your Honour.

24             JUDGE BONOMY:  But not their identities; is that the position?

25             MS. UERTZ-RETZLAFF:  I think including the identity.

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 1             JUDGE BONOMY:  So everything has been disclosed?

 2             MS. UERTZ-RETZLAFF:  Yes, everything is disclosed.  It's only the

 3     protection towards the public.

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 1             JUDGE BONOMY:  Okay.  And then 198?

 2             MS. UERTZ-RETZLAFF:  There's nothing to hold back.

 3             JUDGE BONOMY:  There were parts of private session in the

 4     Krajisnik trial.  Does Mr. Karadzic have the private session parts of

 5     that evidence?

 6             MS. UERTZ-RETZLAFF:  Yes, Your Honour.

 7             JUDGE BONOMY:  And then the 16 witnesses.  Now, there are two

 8     reasons given for seeking to lead or to present this evidence in writing.

 9     I think in 14 instances, that is the death of the witness, and in 2 it is

10     illness.  Is that a correct summary?

11             MS. UERTZ-RETZLAFF:  That's correct.

12             JUDGE BONOMY:  I think, in relation to the question of illness,

13     you may need to do a little more work.  I, for one, would expect that

14     before a witness might not be required to give evidence through illness,

15     that witness would have to be said to be unfit to give evidence because

16     of illness.  And that would have to have regard to the possibility of

17     evidence through a videolink from a location convenient for the witness

18     or, alternatively, evidence by commission; in other words, evidence from,

19     is it, Rule 71 that provides for --

20             MR. TIEGER:  Yes.

21             JUDGE BONOMY:  Now, in the case of one of the witnesses, you may

22     be fairly close to that situation already, but not in the other one,

23     I think.  So I invite you to review the material you submitted in support

24     of these two, and to supplement it if you're able to.

25             Now, this may be an appropriate time to take them all together

Page 71

 1     and for you to tell me, Mr. Tieger, if this is your area, where you are

 2     in identifying whether it really is necessary to maintain protective

 3     measures in respect of witnesses who are deceased, and I think that

 4     applies to one of the sixteen and applies to some of the others we've

 5     just been discussing.  It applies to 446; is that right?

 6             MS. UERTZ-RETZLAFF:  I think 044, Your Honour.

 7             MR. TIEGER:  044, I think.

 8             JUDGE BONOMY:  Yes.  That's the one in your motion for 16.  But

 9     in addition to that one, it applies to 446 and 290 and 198?

10                           [Presiding Judge and legal officer confer]

11             JUDGE BONOMY:  So that's just -- does that mean there are a total

12     of three deceased witnesses for whom there are protective measures?  You

13     tell me, because that's --

14             MR. TIEGER:  Your Honour, I can only say that conforms with my

15     recollection of that.  I was looking at particular motions, and I hadn't

16     comprehensively the number of --

17             JUDGE BONOMY:  All right.

18                           [Presiding Judge and legal officer confer]

19             JUDGE BONOMY:  It may only be 446 and 44.  However --

20             MR. TIEGER:  For 198, there were no --

21             JUDGE BONOMY:  So 446 and 44.  Now, I know that the Rules say

22     that these measures continue in force, and it's a reasonable

23     interpretation that that applies after the death of the witness.  And I

24     know the Rules say that it's for the person who really wants to vary the

25     conditions to make the application.  But I think in the circumstances of

Page 72

 1     this case, it's unrealistic to expect Mr. Karadzic to roll that ball

 2     without having some background information.  So what steps have you taken

 3     to find out if these measures really are necessary, now that the

 4     witnesses are dead?

 5             MR. TIEGER:  Your Honour, I haven't heard -- I think as we

 6     indicated in our recent submissions, we largely accept and share that

 7     view, and indicated that we wished the opportunity to contact family

 8     members to determine whether or not there is a basis that extends beyond

 9     the now -- that no longer meaningful individual security of the deceased

10     witness.  I haven't heard back on that.  I understand from the Court

11     that's a matter of priority, and we undertake to do that, to determine

12     whether or not those -- sort of reverse the presumption and determine for

13     ourselves whether or not those protective measures any longer have

14     meaning.

15             JUDGE BONOMY:  Well, I'm grateful for that, but there are two

16     aspects to this.  The original application could well have been based on

17     the security of persons other than the witness, and that information you

18     should already have.  If there are no additional issues, on the face of

19     it, then -- and you would be relying on something else, at this stage

20     I think the onus would inevitably be on you now to be up-front about that

21     and explain that the previous basis has gone, but there is a separate

22     basis, and to make an application.

23             Now, I'm minded to fix a time-limit for this, because this again

24     has a scope for delaying the process.  And bearing in mind that the next

25     status conference would be the 1st of July, then I think if you had from

Page 73

 1     today until the end of next week to submit any application, on the

 2     understanding that the Trial Chamber would expect you to file appropriate

 3     applications for removal of these measures before whatever Chamber is

 4     responsible for them by that date, so that would be, I think, by the 26th

 5     of June.

 6             Now, if you don't feel able to make the appropriate applications,

 7     but you see the situation as meriting an application at least for

 8     consideration, an application at the instance of the accused, then we

 9     would expect you to furnish the accused with the information to make that

10     application, if you feel it's not one you reasonably can make, for some

11     procedural reason or for any other reason.  But either way, by the 26th

12     of June, I think this should be either the subject of applications to

13     appropriate Trial Chambers or otherwise resolved.  All right?

14             MR. TIEGER:  Thank you, Your Honour.

15             JUDGE BONOMY:  Now, Mr. Karadzic, do you have any other

16     suggestions to make about how this might be done?  The aim here is to get

17     to the point where you get as much information as you can.  To me, it is

18     always an administrative obstacle to the expeditious conduct of the

19     trial, to have any measure to overcome that restricts your access to

20     material, and if you can think of any other way in which we might get to

21     the point of providing you with a full and free access, then please

22     assist us by telling us of any idea you have.

23             THE ACCUSED: [Interpretation] Thank you.

24             I am fully in agreement with your view of the problem, and should

25     I come up with an idea of resolving this, I will let you know.  Thank

Page 74

 1     you.

 2             JUDGE BONOMY:  Thank you very much.

 3             Now, there are two other witnesses for whom more recent

 4     applications have been made, and these are referred to as 297 and 172.

 5     These two are named on your list of witnesses, Mr. Tieger, are they?

 6     They are on your 65 ter list in their true names?

 7             MR. TIEGER:  Yes, Your Honour.

 8             JUDGE BONOMY:  Thank you.

 9             Now, in relation to 297, there's no material which has not been

10     given to Dr. Karadzic; is that correct?

11             MS. UERTZ-RETZLAFF:  Yes, Your Honour.

12             JUDGE BONOMY:  And in relation to 172, I take it that --

13             MS. UERTZ-RETZLAFF:  The same.

14             JUDGE BONOMY:  Yeah, and indeed he has access to confidential

15     material which, in the view of the Prosecution, ought not even to be

16     confidential, and that's the subject of an application at the moment; is

17     that correct?

18             MR. TIEGER:  Sorry, Your Honour, that's -- the reference is

19     escaping me at the moment.

20             JUDGE BONOMY:  This is 172 is Babic, and this is the evidence on

21     the 3rd of June, 2004, where the evidence remains confidential, the

22     transcript remains confidential, albeit it should -- the confidentiality

23     should have been raised.

24             MR. TIEGER:  Oh, I'm sorry, I --

25             JUDGE BONOMY:  It doesn't affect disclosure.

Page 75

 1             MR. TIEGER:  Right, I misunderstood what the Court was saying.

 2             JUDGE BONOMY:  Okay.

 3             Now, one other thing that does send a shudder through my spine in

 4     relation to this witness, though.  Am I right in calculating that you

 5     might be endeavouring to tender 538 exhibits through this one witness's

 6     written testimony?

 7             MS. UERTZ-RETZLAFF:  That's correct, Your Honour.  That's

 8     actually the exhibits that were dealt with in the previous cases, so it

 9     was always a witness who came with a lot of documents related to the

10     developing of the -- of various political bodies and the like.

11             JUDGE BONOMY:  I alluded briefly earlier on to the possibility

12     that when it comes to trial, it may not be possible for this trial to

13     proceed on the basis of the whole indictment.  One other possibility, of

14     course, is to be much more selective about the way in which evidence, in

15     relation to the whole indictment, is presented.  In other words, it may

16     not be possible to present evidence covering every municipality, even

17     though you've cut down the number of municipalities from the original

18     indictment.  One still has to ask, How many municipalities do you need to

19     concentrate on to prove a point?  And that may be something you have to

20     review.  And here's a third example:  You may have to, I think, also

21     consider whether, in relation to all of these witnesses, when it comes to

22     trial, you seek to present all the testimony of the witness and all the

23     exhibits, or whether now that you've got to this state in your knowledge

24     of all the events in the former Yugoslavia, you can be more selective.

25             MR. TIEGER:  No, understood, Your Honour.  It does occur to me

Page 76

 1     that that determination rests, at least in small measure, upon some

 2     guide-lines with regard to exhibits and testimony.  So if, for example,

 3     testimony deemed quite significant by the Prosecution was accompanied by

 4     exhibits that were perhaps not so individually significant, but there was

 5     a ruling that testimony should not come in unless the exhibits referred

 6     to during the course of that testimony were also appended or exhibited,

 7     then that would be a consideration as well.  But, of course, in the

 8     abstract, such considerations aside, we certainly understand what the

 9     Court is saying.

10             JUDGE BONOMY:  But you'll see also that the Court is invited, in

11     this motion, to consider the situation in the abstract.  Principally, I

12     accept because we fixed a date for the submission of these motions, and

13     therefore they had to come in, but it may be that we will be either into

14     the trial or near to the date of trial before it's possible to sensibly

15     address such a massive quantity of material as there is for that one

16     92 quater witness.

17             And that then leads -- I think the final one of these is the

18     evidence of eight expert witnesses.

19             Now, Mr. Karadzic, you could help me, I think, in this area, if

20     you're willing to.  The Prosecution seek to present in writing evidence

21     of handwriting experts and evidence of certain forensic evidence.  You

22     have applied to the Registry for authority to engage an expert to review

23     the handwriting, and I'm grateful for that.  That followed a discussion

24     at the last status conference.  I had also hoped that you were going to

25     apply for authority for a forensic science expert to start reviewing some

Page 77

 1     of the forensic science material.  Are you likely to do that?  Because it

 2     would have an impact on the timing of when we deal with this application.

 3     There would be good reason, then, for postponing dealing with this until

 4     your expert had a chance to look at the material.

 5             THE ACCUSED: [Interpretation] I am in the process of assigning my

 6     experts who are going to study the material.  I do have a problem,

 7     because I am being required to be very specific about the matter that my

 8     experts are going to be dealing with.  My experts at the moment are

 9     dealing with the findings of the OTP experts.  I cannot be more specific

10     than that.  That is his job or their job, to study the findings of the 26

11     expert witnesses of the OTP, and they are going to prepare me for the

12     examination-in-chief and the cross-examination.

13             This is all I can say at this time.  And as you said yourself,

14     the bureaucratic nature of this institution may prolong this whole

15     matter.  I am not aiming here at anyone in particular, but at the Rules,

16     which, to me, are incomprehensible and are overly bureaucratic.

17             JUDGE BONOMY:

18             MS. UERTZ-RETZLAFF:  The other one, Your Honour, is not included

19     in this motion because --

20             JUDGE BONOMY:  Only one is included here?

21             MS. UERTZ-RETZLAFF:  Yes.

22             JUDGE BONOMY:  So all the others are forensic science or

23     pathology, are they?

24             MS. UERTZ-RETZLAFF:  Yes.

25             JUDGE BONOMY:  So I misspoke, Mr. Karadzic.  Only, I think,

Page 78

 1     Dr. Barr is involved with handwriting.  The others are all involved in

 2     forensic science or pathology.  It should be possible for you to apply to

 3     the Registry for authorisation of appropriate experts, I imagine, to deal

 4     with this motion, the subject matter of this motion, apart from anything

 5     else.  And as I say, you've already done so in relation to Dr. Barr.  So

 6     I invite you, after this meeting today, with whichever of your assistants

 7     is dealing with this, to discuss an application for an immediate

 8     allocation of an expert to help review this and see if this is, again,

 9     something that can be resolved.

10             THE ACCUSED: [Interpretation] I have already submitted a request

11     for a handwriting expert from London, but I received a request from the

12     Registry to be specific in terms of what I expect from him. What I expect

13     from him to completely study the findings of the OTP expert, and I'm

14     afraid that the Registry may require me to submit, for all 26 experts,

15     demands that I'm not able to meet.  I am not able to say what I expect

16     from my expert until I look at the findings of the expert of the other

17     side.  This is quite logical.  So I am expecting my experts to review the

18     findings of the experts of the other side and to help me prepare.  If

19     there are any ways to perhaps influence the Registry, perhaps it would be

20     a good thing so that this whole thing could move further faster.

21             JUDGE BONOMY:  I'm not sure I'm clear on what you've actually

22     done.  Certainly, I know that you've applied in relation to handwriting,

23     but have you made any application to the Registry in respect of any of

24     the pathology or forensic science evidence experts?

25             THE ACCUSED: [Interpretation] I have compiled their CVs, and I am

Page 79

 1     expecting now to see how I am going to resolve this problem of this

 2     request for specificity.  I don't wish to be submitting requests and then

 3     have them returned with the request that I have to be more specific, and

 4     I cannot be specific or more specific until my experts review the

 5     findings of the experts from the other side.

 6             JUDGE BONOMY:  Is there one of your assistants, in particular,

 7     who deals with this aspect of the case?

 8             THE ACCUSED: [Interpretation] Yes.  I have compiled the CVs and

 9     the bibliography for a certain number of experts, and I'm satisfied with

10     the abilities of the assistant, that in order to be able to ask the

11     Registry to allocate funds for this, I am expected to be more specific as

12     to their field of expertise.  But their field of expertise, as far as I'm

13     concerned, would be to review the findings of the expert of the OTP.  I

14     cannot say anything more than that, so I'm waiting to discuss with the

15     Registry what else it is that I am asked -- being asked to do.  My

16     request for the graphologist from London was not deemed satisfactory.

17             JUDGE BONOMY:  Well, I will certainly look at this, but I was

18     really asking if you were able to identify to me which of your assistants

19     is dealing with this, because I'd be happy to take up with him and the

20     Registry the question of how most quickly to deal with this problem.

21             THE ACCUSED: [Interpretation] Everybody is doing everything.  As

22     for the handwriting expert, he was being dealt with by Mr. Robinson, and

23     then Mr. Petronivic [phoen] from Belgrade is dealing with the expert

24     witnesses who will be coming from my country.

25             JUDGE BONOMY:  Okay.  I will take such steps as I can to try to

Page 80

 1     have this dealt with quickly.

 2             THE ACCUSED: [Interpretation] If I may add, we're also talking

 3     about the speed, but also the number of hours, and the Registry is quite

 4     restrictive in terms of the hours.  And on those grounds, this is

 5     something that makes it very difficult to do the job properly.

 6             JUDGE BONOMY:  So I understand that particular problem, and it's

 7     related to the requirement for specificity in your application.  The

 8     Registry, however, will require to be flexible to deal with a case of

 9     this magnitude.  That makes them, obviously, expect from you a degree of

10     detail that is quite demanding, and I recognise that that is something

11     which takes time.  On the other hand, it's sometimes a reason for not

12     doing a particular job because you have so many others to do, and this

13     one is quite tricky.  So we have to cut through that and somehow or other

14     bring your assistant and the Registry together to try to resolve this

15     quickly.

16             Now, I have two other matters, broadly, to deal with.  We'll need

17     a break at some stage, I think.  We have to break after 90 minutes, do

18     we?

19             THE REGISTRAR:  Your Honours, I think we can carry on until the

20     designated 4.30.

21             JUDGE BONOMY:  All right.  Give me your best offer, I was going

22     to say, but that's even better.  Thank you.

23             Let me deal with one which I think may be simpler than the other.

24     The two issues are witness -- one is witness related, the question of

25     contact with witnesses, and I'll come back to that because I think that's

Page 81

 1     a bit more complicated.  The other one is your Holbrooke Agreement

 2     motion, and there are two outstanding -- there are three outstanding

 3     matters, in fact.  One is the assistance you've requested from the

 4     United Nations.

 5             I've not had an opportunity to deal with this further yet,

 6     although there is a response from the Director of Legal Affairs at the

 7     United Nations which you will have seen.  My intention is to -- you have

 8     not seen it?  It was filed, filed on the 4th of June.  It came in the day

 9     of the status conference, but it came in after the status conference was

10     finished, and therefore I was not able to address it then.  You have seen

11     that?

12             Ms. Davidson will show it to you, and you can --

13             THE ACCUSED: [Interpretation] I thought that you had received

14     something today.

15             JUDGE BONOMY:  No, this is the one, the only response, but I have

16     not had an opportunity to take this up yet.

17             THE ACCUSED: [Interpretation] This has not reached me.

18             JUDGE BONOMY:  That's very strange, because this was filed and

19     everything should go to you.

20             THE ACCUSED: [Interpretation] Probably because it's addressed to

21     you.

22             JUDGE BONOMY:  Yes, I know that Mr. Robinson has seen it because

23     there's been some e-mail exchange with Mr. Robinson about it, so you can

24     take it that someone on your behalf has certainly seen it.  But I think,

25     in the circumstances, you won't be able to answer my question, because

Page 82

 1     what I propose to do is take up with the Director of the Office of Legal

 2     Affairs of the United Nations how we can speed up this exercise, so I

 3     intend to telephone her.  I will do so in the presence of someone from

 4     the Registry so that what takes place between us is recorded, but I

 5     wanted the parties to have the opportunity of commenting on that

 6     suggestion.  If either of you objects, then I have to reconsider what I'm

 7     doing.  I may still do it, but I would reconsider how I was going to do

 8     it.  But I want to alert you to the fact I'm going to have that

 9     conversation with her and to see if you have any objection.

10             First of all, Mr. Tieger.

11             MR. TIEGER:  No, nothing arises at the moment, Your Honour.  If

12     we think of something that you or we haven't thought of, we'll raise it,

13     but nothing appears at the moment.

14             JUDGE BONOMY:  And, Mr. Karadzic, do you see a problem there or

15     would you rather not comment without further consideration of the matter?

16             THE ACCUSED: [Interpretation] I would rather review the problem.

17     We are talking about your having a conversation with the director of the

18     legal service of the United Nations.

19             As for Ms. Hartmann, today we have sent the specific information

20     about where the transcript of the conversation is between Madam Arbour

21     and General Clark.  On the other hand, we are expecting from the Swedish

22     government and from Mr. Bildt a response, which we have not received so

23     far.

24             JUDGE BONOMY:  I'll come to that in a moment.  Can I ask you,

25     though, in relation to the United Nations, to review the position

Page 83

 1     immediately after this meeting today.  A copy of this document will be

 2     given to you, personally.  I would be grateful if you would speak to

 3     Mr. Robinson about it and perhaps very quickly make a filing indicating

 4     whether you really have any serious objection to me speaking to the

 5     director with a view to arranging -- it's really for arranging for

 6     Mr. Robinson to deal with this directly with her, as he suggested.  So

 7     please do that after today's meeting.

 8             As -- yes, sorry?

 9             THE ACCUSED: [Interpretation] My legal advisors, who are not from

10     here, can be here three days, and you know yourself this is something

11     that we discussed and they are being reimbursed at the fee of 25 Euros an

12     hour.  Mr. Robinson can spend more time, but he's not obliged to do that.

13             I am interested in establishing cooperation with the

14     United Nations.  This is just one of the first demands I have in relation

15     to the United Nations.  There will be more, because this trial cannot be

16     conducted were the United Nations to deny providing documents, in view of

17     the fact that this institution is an institution of the United Nations.

18     I am going to take a day or two to discuss the matter with Mr. Robinson,

19     and he will definitely call you and state what my position on this matter

20     is.  Thank you.

21             JUDGE BONOMY:  Thank you.  I note what you say about the

22     information from Florence Hartmann, and that is helpful.

23             The other matter you mention I also intended to raise with you,

24     and that's the question of Mr. Bildt.  Now, there has been a response

25     which has come to us through Mr. Robinson, I -- did it come -- it came

Page 84

 1     direct, so you may well not have seen this.  This came in only at

 2     lunchtime today, but it says in terms that the same information was sent

 3     to Mr. Robinson, and the information is that Mr. Bildt will meet with him

 4     as long as a Rule 70 order is made, so that the information would not --

 5     any information conveyed would not be used without the authority of the

 6     Government of Sweden.  Now, that so far has been acceptable to you in

 7     relation to other governments, in particular the United States.  If

 8     that's your position in relation to an interview with Bildt, the Chamber

 9     would make an order today, a Rule 70 order, which would allow you to go

10     ahead with that interview.

11             THE ACCUSED: [Interpretation] My general position is to respect

12     the requirements of each government because there will be many countries

13     that we will be seeking sensitive documents from.  So you have my

14     position in advance that we are going to adhere to all positions arising

15     from Rule 70.

16             Do I need to make a motion or request, this letter for a Rule 70

17     decision, or you are just going to do that based on the letter you have

18     already received?

19             JUDGE BONOMY:  No.  I'm going to ask my colleagues in the

20     Trial Chamber to make such an order, in light of what I interpret as your

21     motion just now, in view of the terms of the Swedish government's

22     communication.

23                           [Presiding Judge and legal officer confer]

24             JUDGE BONOMY:  So I note that you approve of that course of

25     action, that that's what you seek, and I will ensure that a check is made

Page 85

 1     with Mr. Robinson before the order is issued so that we can see exactly

 2     what has been communicated to him so far as it's relevant to the decision

 3     we have to make.

 4             I'm assuming in all of this, Mr. Tieger, that you would have no

 5     comment to make.

 6             MR. TIEGER:  Thank you, Your Honour.  Correct.

 7             JUDGE BONOMY:  Now, as far as the further two witnesses from the

 8     United States are concerned, they've now declined, as I understand it, to

 9     authorise an interview.  We can do one of two things here.  Either you

10     can withdraw the motion for a Rule 70 order or the Trial Chamber can deny

11     the order.  I think the preferable course would be for you to withdraw

12     the motion.

13             THE ACCUSED: [Interpretation] I cannot state my position on this

14     today.  However, if I will be withdrawing my requests for relevant

15     evidence, then this trial will make no sense.  I wish the countries which

16     support this Tribunal and member countries of the UN, I wish that they

17     did not withdraw or withhold any evidence they might have, and of course

18     I will be adhering to the order issued under Rule 70.

19             JUDGE BONOMY:  You misunderstand the position, though.  I'm not

20     suggesting you withdraw your request to the United States for

21     information.  What I'm suggesting is that you withdraw your motion for a

22     Rule 70 order, because without the agreement of the United States to the

23     terms of the Rule 70 order, it's impossible for the Trial Chamber to make

24     one.  Now, if you have reservations about doing that, then the Chamber

25     will simply deny the motion, and it will do it later today.  I just give

Page 86

 1     you the opportunity, if you wish to take it.

 2             THE ACCUSED: [Interpretation] I will be seeking that the

 3     Trial Chamber insist with the United States of America, which had, on

 4     their part, promised to cooperate with the Tribunal, that the

 5     Trial Chamber insist that the United States honour the requests put

 6     forward by the Defence.

 7             JUDGE BONOMY:  I understand that also, but the mechanism for

 8     doing that is not through Rule 70.  You'll have to follow another course

 9     of action, which you can discuss with your legal advisors.

10             Anyway, we've exhausted that topic, and that, therefore, leaves,

11     I think, two separate motions which relate to access to witnesses.

12             And while we discuss this, I think we should have present with us

13     the -- a representative from the Victim and Witnesses Section, and

14     I think Mr. De Witt said that he would be available.  He's the senior

15     member of staff responsible for that section, so could you invite him,

16     please, to come into the room, Court Deputy.

17             THE REGISTRAR:  Mr. De Witt will be on his way, Your Honour.

18             JUDGE BONOMY:  Thank you.

19             Mr. Karadzic, I can explain to you, before Mr. De Witt arrives,

20     the situation so far.

21             You have asked the Trial Chamber to order the Victims and Witness

22     Section to do a number of things:  to get -- to be provided with details

23     of the witnesses that the Prosecution intend to call, and then to ask

24     these witnesses whether they consent to be interviewed on your behalf; to

25     ask them also whether they would like a representative of the Prosecution

Page 87

 1     to be present, and to tell you the results of these inquiries.  You then

 2     ask for a number of other things which are secondary to this.  One is for

 3     the transportation of these witnesses to The Hague, and the making of

 4     appointments for interview.

 5             Now, the Registry have responded to that application to say that

 6     that is not a function for them to undertake.  The only thing that they

 7     consider appropriate for them is to check with the witnesses, whether

 8     they consent to their details being given to you.  But they don't see a

 9     function for them in speaking to the witnesses to find out if they are

10     agreeable to being interviewed by your representative.

11             Unusually, the Prosecution have not responded to this, and we

12     don't have a Prosecution position.  Now, Mr. Tieger, that might be where

13     we should start on this exercise.

14             MR. TIEGER:  My recollection, Your Honour, is it was raised at

15     the status conference.  There was a fairly detailed oral response, and

16     the Court suggested, in fact, that perhaps there was no need for any

17     further response.

18             JUDGE BONOMY:  All right.  You remind me of the discussion, and

19     if that's the reason, then I understand it.

20             You'll need, however, to remind me of the terms of that, because

21     I, for some reason, had a view that you were not opposed to the basic

22     elements of the application by Dr. Karadzic.

23             MR. TIEGER:  Our position, Your Honour, was essentially this:  As

24     a preliminary matter, we - and I should underscore that - rejected the

25     notion that the Prosecution was incapable of doing that for any reason,

Page 88

 1     and that we were fully prepared to do so appropriately.  However, we

 2     didn't want to make the messenger more important than the message, so we

 3     accepted, in theory, that the same fair approach could be made by

 4     Registry, but emphasised that in order for that to happen, we considered

 5     that it would be necessary to have input at the front end so that

 6     Registry was aware of prior contacts with the witnesses, prior

 7     sensitivities of witnesses, and so on, so there was a reduced risk of the

 8     appearance of harassing witnesses who had been contacted in the recent

 9     past, of not being aware of previous information provided by that

10     witness, et cetera, and that there needed to be contact at the other end

11     for essentially the same purpose, so that witness security, witness

12     comfort levels, the issue of witness fatigue, none of those things were

13     aggravated or implicated by multiple contacts with the witnesses by arms

14     of the Tribunal that weren't aware of what each were doing.  But with

15     those caveats, we consider that we would not oppose, in principle,

16     contact by the Registry for the purpose of finding out from witnesses

17     whether they consented to the disclosure of their contact details so that

18     they may be interviewed.

19             JUDGE BONOMY:  What's your position on simply giving the accused

20     the details of all the witnesses who are not protected witnesses in some

21     way?

22             MR. TIEGER:  We oppose that, and perhaps that should have been

23     made more clear.  I think it was made clear in our response to

24     Dr. Karadzic, a letter we sent back to Dr. Karadzic and which he appended

25     to his motion.  That was explicit there.

Page 89

 1             JUDGE BONOMY:  Mr. Karadzic, this application that you submitted

 2     was clearly carefully framed.  A deliberate decision was made to try to

 3     involve the Victim and Witnesses Section.  Why did you follow that course

 4     of action rather than simply ask for a list of names so that your own

 5     representatives could contact the witnesses direct?

 6             THE ACCUSED: [Interpretation] Your Lordship, you have -- you are

 7     quite irresistible, because you seem to have drawn me into participating

 8     actively here, rather than adhering to my position to actively

 9     participate in public sessions.  I think that under the Rules, and under

10     the rules of propriety, I should not be contacting witnesses before

11     informing the other side and gaining their consent.  That's the reason

12     why I filed this application.

13             Even if, in the cases where I know that there are -- where

14     witnesses - which are OTP witnesses - live, I do not wish to take any

15     steps before I hear the OTP position.  On the other hand, the OTP has now

16     included in their list several witnesses whom I wanted to be witnesses of

17     the Defence and whom I was in contact with earlier on.  Of course, these

18     are not the ones that I include in this particular application.  But for

19     all the other witnesses I wish to follow -- for the other OTP witnesses,

20     I wish to follow the procedure set out in the application.

21             JUDGE BONOMY:  Thank you for clarifying that.

22             I should make it clear for the record that Mr. De Witt did enter

23     the room at the very beginning of the discussion on this subject and has

24     been listening to what has gone so far, and it's to him that I now direct

25     my attention.

Page 90

 1             Mr. De Witt, the application made by Mr. Karadzic here struck the

 2     Trial Chamber as a reasonable approach to a problematic situation for

 3     someone located where he is at the present time.  Subject of course to

 4     the comment that I can immediately see difficulties about facilitating

 5     and paying for transportation and making the appointments for the

 6     interviews.  But the earlier part of the application, contacting

 7     witnesses, finding out whether they are willing to be interviewed, and

 8     asking if they wanted somebody from the Prosecution to be presented, it

 9     seemed a straightforward way of dealing with what could be a very

10     complicated situation, because Mr. Tieger in just a few sentences made it

11     sound particularly complicated because of the individual nature of every

12     witness and the restrictions that might apply to each witness or how the

13     Defence deal with each witness.  So it was of some concern to the Chamber

14     then to hear from the Registry that really none of this can be done,

15     except simply to contact witnesses to see if they're willing to have

16     their details given to Mr. Karadzic, which is something that another

17     Trial Chamber has already recently decided isn't for the Prosecution to

18     decide at all; that the witnesses' details, if they are not protected

19     witnesses, ought to be freely available to the accused.

20             So you can see the difficulty for the Trial Chamber.  What seems

21     a neatly-controlled way of doing it is not, according to Victim and

22     Witness, available, and a more haphazard way of doing it, one that

23     doesn't cater for the particular sensitivities of the witness, unless

24     Dr. Karadzic's team is particularly sensitive in their approach, that

25     more haphazard one seems to be available under the jurisprudence of the

Page 91

 1     Tribunal.  So we are trying to find a way of dealing with this situation

 2     that is clear and acceptable to everyone.  Can you help us at all, beyond

 3     what's in the written submission?

 4             MR. DE WITT:  Yes, thank you, Your Honour.  You have managed to

 5     summarise the situation, and the written submission does contain what the

 6     position of the Registry is on this matter.

 7             I just would like to raise a point in which the VWS gets involved

 8     in the first half about contacting the witnesses and finding out if they

 9     are willing to testify, et cetera, experience has shown in the past that

10     the witness will not simply give a yes-or-no answer.  The witness will

11     very likely have more questions about maybe the content of the testimony,

12     what is being required, what questions would the Defence want to ask the

13     witness.  And it's situations like that where the VWS will find itself in

14     between, unable answer these questions because there's no representative

15     of the requesting party present during the call when it's being made.

16             And in the past, it was suggested, simply because of the way it

17     is - you have the Defence and the Prosecution sensitivities in these

18     matters - is that a person who is present from the Chamber is available

19     at the time the call is being made by the WVS to ascertain the witness'

20     willingness or not to testify for the other side, in the event that there

21     is substantive questions asked by the witness, that someone who is

22     instructed in the background and the nature of the evidence that's being

23     expected could give the witness an indication or an explanation.  And so

24     besides what submissions have been made in the WVS or the Registry

25     submission, this is a practical matter or point which I would like to

Page 92

 1     raise, and that is that VWS will not be in a position to give more

 2     explanation and would invariably have to say, We will have to call you

 3     back after receiving further instructions either from the Prosecution,

 4     the Defence, or the Chamber.

 5                           [Presiding Judge and legal officer confer]

 6             JUDGE BONOMY:  Mr. Karadzic, have you any idea how many witnesses

 7     we might be talking about here?  I get the impression you're not

 8     envisaging interviewing all of the witnesses, but do you have any idea of

 9     what proportion?

10             THE ACCUSED: [Interpretation] Yes, Your Honour, I do have an idea

11     of what I have to do, and this is not just a question of whether they

12     agree or not to see me here or to members of my team somewhere else.

13     This is also a question of logistics, and this would be a matter for the

14     Registry.  We would need to ask for -- or we would need to let them know

15     that we would like to get in touch with these witnesses and speak with

16     them, which I don't think would be the proper -- appropriate.  But we are

17     talking about equality of arms here and equal access, as far as

18     witnesses.  The Prosecution has said that they intend to call

19     230 witnesses pursuant to 92 bis or 92 ter.  This is an enormous number

20     of witnesses, and perhaps if they were to testify viva voce, they would

21     be able to state a lot of relevant things.  However, I would not ask to

22     speak with all 230 of them, but 80, perhaps.  Yes, I think I even

23     mentioned that somewhere in my motion.  I would need to speak with 80 of

24     those that are planned to be called by the Prosecution.  But without the

25     assistance of the Registry in terms of logistics, not just in terms of

Page 93

 1     mediation, but also in terms of logistics, we are absolutely helpless.

 2             JUDGE BONOMY:  Have you any comment to make on the suggestion

 3     made by Mr. De Witt that to protect the integrity of the Victim and

 4     Witnesses Section, there would have to be present someone from the

 5     Trial Chamber who would then be able to explain, if asked by the witness,

 6     the general nature of what being interviewed is; in other words, that

 7     they are being asked about their own personal knowledge of events over a

 8     particular period at a particular location?  And when I refer to members

 9     of the Trial Chamber, I'm talking about the legally-qualified staff I

10     have on either side of me here, and there are others working in the

11     Chamber too.  So they -- the suggestion is that in case there are any

12     questions that the VWS do not feel comfortable answering, they would be

13     able to intervene to prevent any feeling of animosity towards VWS

14     representatives because they are seen in the wrong light, in the wrong

15     circumstances.

16             This might be a way forward, but what's your comment on it?

17             THE ACCUSED: [Interpretation] At this point, it does not seem to

18     be a bad idea to me.  I am going to consult my associates, but it seems

19     to me that we don't have anything against there being a representative of

20     the Trial Chamber present rather than a representative of the Registry.

21     I'm just interested in the circumstances that the Prosecution deals with

22     these matters, because both the Prosecution and the Defence would need to

23     have a similar position and similar circumstances in these matters.

24             JUDGE BONOMY:  Thank you.

25             Mr. Tieger --

Page 94

 1             MR. TIEGER:  Just to clarify, Your Honour -- I'm sorry to

 2     interrupt.  Just to clarify, I think Dr. Karadzic said a representative

 3     of the Trial Chamber rather than a representative of the Registry.  My

 4     understanding of the proposal was "in addition to," so he's clear on

 5     that.

 6             JUDGE BONOMY:  I'm not hearing you, sorry.

 7             Yes, can we clarify that, Dr. Karadzic?  Were you saying -- or

 8     had you misunderstood?  What Mr. De Witt was suggesting is that the

 9     representative of Victims and Witnesses does make the call, but in the

10     presence of a representative of the Trial Chamber, who would intervene to

11     deal with any more problematic issues that are raised by the witness.

12             THE ACCUSED: [Interpretation] The secretariat has gotten me used

13     to the idea that they're always economizing, and that they don't have

14     money, so what I understood was that then we would have a representative

15     present of the Trial Chamber and not of the Registry, and not together.

16     But let me review that, and then we can decide.  The question is, though,

17     what impression and what effect would be made on the witness by a

18     representative of the Trial Chamber, in view of the fact that this was

19     not viva voce testimony.  But after I consult with my associates, I'm

20     going to let you know what my position on this matter is.

21             In any case, it is better to have an interview in whatever way

22     it's possible than not to have it at all.

23             JUDGE BONOMY:  You can take it that a Trial Chamber staff would

24     have instruction from me that witnesses should be encouraged to cooperate

25     with Defence inquiries.  But of course a witness does not have an

Page 95

 1     obligation to cooperate, but it's a civic duty that you would expect

 2     witnesses, if they can bring themselves to do it, to undertake.  So it's

 3     a delicate issue, conveying to a witness what are the rights and wrongs

 4     of the situation.

 5             And one reassurance is provided by your own motion, where you

 6     invite -- or ask that the Registry be invited to ask the witness if that

 7     witness wants someone from the Prosecution to be present, and that should

 8     be a reassuring factor for any witness.

 9             Now, Mr. Tieger, do you have any further comment to make on this,

10     and in particular on Mr. Dewitt's suggestion?

11             MR. TIEGER:  No, I don't know if I have one that either advances

12     or derails the process.  It occurs to me that, in any event, witnesses

13     may well pose questions that no one is in a particular position to

14     answer, and the presence of a Chamber's representative will not

15     necessarily resolve that issue, and witnesses will sometimes have to be

16     told, I presume, That's not something we're in a position to know.

17             The other issue that arises, that the Court alluded to, I think,

18     that I recall raising during the course of the status conference, is the

19     concern that the witnesses not feel pressured one way or another.  I

20     mentioned that in our response to Dr. Karadzic.  I did my best to assure

21     him that we would try to ensure -- that is, if we had been called upon to

22     make these inquiries, that we didn't guide a witness in one direction or

23     another.  I think that's important, particularly in these circumstances,

24     and particularly for witnesses who may not understand the process or

25     their obligations, and may yield to unintended pressures that were not

Page 96

 1     meant to be applied in any way, but that the witnesses feel,

 2     nevertheless.

 3             So the Court characterized it as a delicate process; I agree

 4     that's the case.  I just wanted to mention that's one of the

 5     considerations that I think are important to bear in mind as we move into

 6     this.

 7             Having said those things, from the outset I indicated that I

 8     thought the quality of the message, and I just mention one aspect of that

 9     quality, was more important than the particular messenger, so I wouldn't

10     have anything further to add.  I'd like to consider -- I haven't

11     considered previously the role of a Chamber's representative.  We'll

12     consider whether that has some implications that we haven't thought about

13     at the moment.  But other than that, I have nothing additional.

14             JUDGE BONOMY:  You sound as though -- you sound as though you may

15     not agree with the approach that says witnesses should be encouraged to

16     cooperate with the Defence.

17             MR. TIEGER:  I understand the -- well, first of all, I think the

18     nature of the duty, or civic duty, or generalised obligation to

19     participate in this way varies from national jurisdiction to national

20     jurisdiction, and I have been advised of some in which this kind of

21     approach would be somewhat unthinkable.  I realise we're operating in

22     this system, and my only concern is that the distinction between

23     generally identifying the utility of cooperation with the system

24     generally and prodding a witness into one particular course or another

25     can be a thin one, and I think when we start talking about encouraging

Page 97

 1     witnesses, we have to be wary about crossing that line.  And I am

 2     concerned about witnesses feeling pressure that no one thinks is

 3     appropriate to apply.

 4             JUDGE BONOMY:  Thank you.

 5             Now, if you have any further submissions to make on this, then

 6     I'd be grateful if you made them fairly quickly, because this is an

 7     urgent matter that we need to issue a decision on fairly soon.

 8                           [Presiding Judge and legal officer confer]

 9             JUDGE BONOMY:  I think that completes our discussion of that

10     issue, Mr. De Witt.  Thank you very much for assisting.

11                           [Presiding Judge and legal officer confer]

12             JUDGE BONOMY:  I'm looking now at the motion at the instance of

13     the accused concerning protective Prosecution witnesses, and that was

14     seeking a way of checking whether these witnesses still wanted protective

15     measures.

16             Now, is that a matter for you, Ms. Uertz-Retzlaff?  Or,

17     Mr. Tieger?

18             MR. TIEGER:  I'll deal with that, Your Honour.

19             JUDGE BONOMY:  Can we be clear about the number of witnesses

20     affected by protective measures in this case?  In the motion, the

21     reference is to 68 for whom protective measures existed in other cases.

22     Is it only 68?

23             MR. TIEGER:  This was -- I think our response dealt with the

24     accused's motion concerning a particular --

25             JUDGE BONOMY:  That's his statement, yes.  My question is:  Is it

Page 98

 1     accurate?

 2             MR. TIEGER:  I think --

 3             JUDGE BONOMY:  I think you say 75 are in the wrong Chamber.

 4             MR. TIEGER:  Yeah.  I think those 68 dealt with are with one of

 5     our latter notifications.  So just simply by extension, the previous ones

 6     dealt with other protected witnesses, and this motion focused on the

 7     fourth notification only.

 8             JUDGE BONOMY:  Can you say offhand, just in rough terms, what

 9     proportion of the witnesses are the subject of protective measures in

10     this case?

11             MR. TIEGER:  I can offer the Court a consensus view in just a

12     moment.

13                           [Prosecution counsel confer]

14             MR. TIEGER:  Between a quarter and a third, I think is the best

15     estimate, Your Honour.

16             JUDGE BONOMY:  If I can help you, we think it's about 200.

17             MR. TIEGER:  I'm not going to dispute that figure.  Then that

18     obviously raises the percentage.

19             JUDGE BONOMY:  Speaking for myself, but I think I may have some

20     support from the rest of the Trial Chamber, that doesn't bode well for a

21     trial to be conducted as publicly as possible.  It raises the question in

22     the mind, Are all of these measures still necessary?  It may be that

23     individually they didn't have quite that impact on other cases, but when

24     they are brought together in this case en masse, then they would have a

25     significant effect, a significant impact.

Page 99

 1             So it's understandable that the accused should make this motion.

 2     However, I see the problem, and I understood at the status conference,

 3     from what Ms. Uertz-Retzlaff said, that as witnesses were re-contacted in

 4     connection with this case, a check was made with them whether they still

 5     sought the protective measures, and that so far those checks had simply

 6     resulted in confirmation.  But there's nothing of that in your response,

 7     so the response is in much more general terms, and it's based more on the

 8     law than on the detail of the measures in this case.

 9             I think there is an issue here, Mr. Tieger, that has to be

10     addressed somewhere.  The Rules are clear.  I'm not suggesting you've got

11     the Rules wrong in any way, but if you're an accused person, at the end

12     of the line, as it were, and some distance in time removed from the

13     events, then to pose the question that's been posed does not seem

14     unreasonable.  I don't know if it is helpful just to say, Right, well,

15     the Rules are the Rules, and that's all we need to do here.  I certainly,

16     with a trial prospect, would be concerned that it might give a rather

17     poor impression of the ability of the Tribunal to conduct its proceedings

18     in public.  So reviewing the situation now doesn't seem an unreasonable

19     request.

20             I know there's a lot of work involved, but I'm not even certain

21     that reviewing the situation requires speaking to every witness.  And I

22     don't necessarily take Mr. Karadzic's point.  There might be some that

23     are so fairly obvious that you can take an easy position on them.  On the

24     other hand, it may be that time having moved on, the situation in the

25     more marginal cases may have changed.

Page 100

 1             So there is a status conference in a couple of weeks, or just

 2     over.  I think I would like you to give some thought, between now and

 3     then, to whether we can't find a way of satisfying the Chamber, at least,

 4     that these measures are still appropriate at this stage without

 5     necessarily spending much-needed resources on checking something which

 6     doesn't go to the root of the matter just at the moment.  It's not

 7     something that needs to be resolved straight away, but I think we need to

 8     be thinking about how it might be resolved, because it will undoubtedly

 9     continue to fester as a sore in this case unless we can be seen to have

10     addressed it.

11             Now, Mr. Karadzic, is there anything else you want to say about

12     this issue of the protective measures that continue in force from

13     previous cases?

14             THE ACCUSED: [Interpretation] My categorical position is that the

15     protection should be enjoyed only by victims.  We have moved away from

16     the war.  It's been 13 years now, circumstances have changed, and there

17     is no need for the whole trial to be conducted under a veil.  These

18     circumstances could lead to a prejudice to the trial, and I don't think

19     that any protection is warranted, save for the case where victims are

20     involved.

21             JUDGE BONOMY:  Thank you.

22             Mr. Tieger, anything you want to say as a final comment at this

23     stage?

24             MR. TIEGER:  No, Your Honour, I'm -- no, I will refrain, that's

25     fine, thanks.

Page 101

 1             JUDGE BONOMY:  Thank you.

 2                           [Presiding Judge and legal officers confer]

 3             JUDGE BONOMY:  The final thing I wanted to deal with was an

 4     application which has been made for protective measures for four

 5     witnesses which you say are made pursuant to Rule 70, and that's for 182,

 6     185, 304, and 450.  Now, the Rule 70 conditions which you seek to have

 7     confirmed in this order are non-disclosure of identity, non-publication

 8     of the statements, and use of the statements solely for preparation of

 9     the Defence.

10             Now, has the government in question asked you to obtain a Rule 70

11     order?  I understand governments asking it of accused people, but I

12     assume that they would accept your word for it that you had disclosed

13     material and made it clear to an accused that it was subject to Rule 70.

14     Do you still require an order in a situation like this?

15             MR. TIEGER:  I didn't deal with this specific application.  I

16     will say, as a general matter, that --

17             JUDGE BONOMY:  We've made -- we did make an order before which

18     related to similar terms, but it was in the context of making it clear

19     that there are certain things which relate to the actual conduct of the

20     trial, that we would expect a separate application to be made for at the

21     time of the trial and before the trial.  But here you're talking about

22     simply disclosing statements, but not disclosing the identity of the

23     witnesses.  Now, is that not something you can actually do, without the

24     authority of the Chamber, and is it not the case you only need our

25     authority when it comes to trying to present this material in court

Page 102

 1     subject to Rule 70 conditions?

 2             MR. TIEGER:  Vis-a-vis the trial --

 3             JUDGE BONOMY:  I have -- here the motion so that ...

 4             MR. TIEGER:  Your Honour, if I understand the Court's question

 5     correctly --

 6             JUDGE BONOMY:  Why do you need the Court to make this order?

 7             MR. TIEGER:  Your question is why we can't just offer the same

 8     assurances because we have the power to do so, why does the government

 9     require this as an order by the Court?

10             JUDGE BONOMY:  Or do they?  Are the government asking for this,

11     or is it just your decision to apply for it?

12             MR. TIEGER:  I didn't directly deal with the -- my understanding

13     is that, in fact, it was a request.  Otherwise, we would have handled it

14     in precisely the way the Court has suggested.

15             JUDGE BONOMY:  So we can assume, when you make an application of

16     this nature which relates exclusively to disclosure, that that's because

17     you've been asked by the state provider to do so?

18             MR. TIEGER:  Yes, and you can certainly assume that in the

19     future, because we would obviously bear in mind what the Court has said

20     and relate it to the relevant government.

21             JUDGE BONOMY:  My concern is when you try to take from the Court

22     any control over the actual process in the trial, and that's when you

23     undoubtedly need to apply.  And if it's not a Rule 75 protective measure,

24     it has to be justified in some other way, such as a national security

25     interest or something of that nature, but it can't just be willy-nilly

Page 103

 1     applied in court without the permission of -- without the authority of

 2     the Trial Chamber.

 3             MR. TIEGER:  Yes, exactly.  This is a reflection of a different

 4     aspect of the provider's concerns.

 5             JUDGE BONOMY:  All right.  Thank you.

 6             Now, these are the issues I wanted to raise.

 7                           [Presiding Judge and legal officers confer]

 8             JUDGE BONOMY:  Sorry, there is one more.  Do we have time to deal

 9     with one more matter, Mr. Karadzic?

10             THE ACCUSED: [Interpretation] I am not going anywhere.  I don't

11     have anything scheduled for this evening.

12             JUDGE BONOMY:  I thought that you did have something at 5.00, and

13     that's why we've been rushing through this a bit more quickly than we

14     would have done.  You had more places to go than we had.

15             THE ACCUSED: [Interpretation] Yes, to the doctor's, but that's

16     not what I would call any sort of entertainment.

17             JUDGE BONOMY:  There is one thing I had overlooked.

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 104

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Page 108

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 7     before we conclude?

 8             MR. TIEGER:  No, thank you, Your Honour.

 9             JUDGE BONOMY:  This has actually been a very useful exercise.  It

10     may not, at first sight, appear so to you, but it's been of great

11     assistance to me and will enable us now to device a scheme for dealing

12     with these various lengthy, voluminous motions that have to be disposed

13     of, and dealing with some of the other trickier issues which have been

14     raised in the course of the discussion.

15             As I've said on two occasion now, we will give both parties every

16     opportunity in public session to address these matters at the status

17     conference, and we will also, so far as is appropriate, make public the

18     transcript of this meeting.  I can't remember how exactly we addressed

19     that issue the last time, whether there was an opportunity for comment.

20     I think there was, but more or less immediate comment would be welcomed

21     so that we could take an early decision on whether to restrict any

22     element of the transcript from publication.

23             So thank you very much for your cooperation, Mr. Karadzic, in

24     assisting the progress of the case, and the Prosecution for dealing with

25     the various matters that we've invited you to address today.

Page 109

 1             We will meet again at the status conference on the 1st of July.

 2                           --- Whereupon the conference adjourned at 4.45 p.m.

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